1. This appeal arises from a title suit. Plaintiffs' case was that land in suit originally belonged to defendant No. 2 and his brothers. In 1937 defendant No. 2, Indranath and his brothers excepting Narayan sold the land in dispute for Rs. 300/- to defendant No. 1, Muktinath. In 1946 defendant No. 2 re-purchased the land from defendant No. 1 for Rs. 500/-. He got possession. The sale was oral. But sometime after the sale transaction on 31-7-1948 defendant No. 1 made Chita endorsements in regard to all the three dags. Narayan also signed these endorsements as a co-sharer in the patta.

On the basis of the endorsements later a mutation was attested in favour of defendant No. 2. He also got a separate patta for the land in dispute. It is averred further that plaintiff got a lease of the land from defendant No. 2 on an annual rental of Rs. 51 for a period of five years by an unregistered document. He got possession of the land leased to him. On 6-9-1948 defendant No. 2 mortgaged the land for Rs. 500/- to the plaintiff. The mortgage was by conditional sale and on 9-1-1949 he sold the land to the plaintiff for Rs. 1,500/-.

2. Defendant No. 1 applied to have the mutation in favour of defendant No. 2 set aside. This application was rejected on 7-9-1949. It does not appear from the proceeding whether the application for setting aside this mutation was made before the sale of 9-1-1949 or after it. According to plaintiff it was in March, 1949 that defendant No. 1 trespassed into the land in dispute, which was in his possession. He instituted a complaint on 27-7-1949.

This complaint was dismissed. The learned Magistrate found that the dispute between the parties was of a civil nature. A proceeding under S. 145, Criminal P.C., was initiated at the instance of the plaintiff's son. But this proceeding also was dismissed in default.

The plaintiff has now prayed for declaration of his title and for possession on the basis of title. He has also prayed in the alternative for a decree for Khas possession by specific performance of the agreement of sale if it is found that the contract of sale was not valid or complete. He has also prayed for a decree for refund of consideration against defendant No. 2 if a decree for Khas possession is not granted to him against defendant No. 1 on either ground.

3. Defendant No. 1 resisted the suit. His case was that there was an arrangement of sale between him and defendant No. 2. He agreed to sell the land to defendant No. 1, but according to the agreement the land was to be sold for an amount equivalent to its market price if and when defendant came to settle in the village. His explanation of the Chita endorsements was that they were made to assure defendant No. 2 that the sale would be completed by a registered deed when he shifted to the village of defendant No. 1.

His version of the transaction is that he got no consideration and did not deliver possession of the land and no valid sale came into existence. He averred that he remained in possession all through. The allegations about delivery of possession to defendant No. 2 and by defendant No. 2 to plaintiff were all repudiated.

4. The learned Munsiff found that the alleged sale of the suit land by defendant No. 1 in favour of defendant No. 2 was not proved in spite of the endorsements made by defendant No. 1 in the Chita. He regarded the evidence as to the passing of consideration as highly discrepant and did not rely on it.

He also found that plaintiff was not entitled to the protection of S. 41, Transfer of Property Act in the circumstances of this case. On issue No. 3 relating to delivery of possession his finding was that defendant No. 1 never relinquished or delivered possession of the land to any one. In regard to relief on the ground of plaintiff's title to specific performance the learned Munsiff gave no finding.

He observed that plaintiffs had abandoned issue No. 5 and therefore no decision on it was necessary. The issue was as follows:

"Whether there is any privity of contract for sale of the suit land between the plaintiff and the defendant No. 1? If so, can there be any claim for specific performance of such contract?'

On these findings the suit was dismissed against defendant No. 1 but a decree for Rs. 1,500/- with full cost was passed against defendant No. 2. Plaintiffs' appeal from the decree was dismissed. Defendant No. 2 did not appeal. Plaintiffs have come to this Court on second appeal.

5. Mr. Lahiri, their counsel has raised two contentions. He has argued (1) that plaintiffs were entitled to the protection under S. 41, Transfer of Property Act on facts admitted and proved. (2) In the alternative he argued that the agreement of sale which was not completed by the execution of a registered document was specifically enforceable and plaintiffs were entitled to ask for its specific performance.

6. I have heard at considerable length the learned counsel for the parties on both the points which have been raised. In regard to the first contention the facts which may be regarded as admitted or proved are as follows :

(1) The endorsements made by defendant No. 1 in the Chita show that the land was sold. This is the only fact repeated in the Chita endorsements. There is no recital in these endorsements either as regards consideration or as regards possession. There is also no promise or assurance from defendant No. 1 about the execution of any sale deed later. (2) It is on the basis of these endorsements that mutations were attested in favour of defendant No. 2, but it does not appear from the mutations that defendant No. 1 was present or had notice. (3) The land sold was only a part of the land in the patta of defendant No. 1. The three dags sold were taken out of the patta and a separate patta was issued to defendant No. 1. From the evidence it appears that this patta was issued without any application and there is no evidence or allegation that any notice was sent to defendant No. 1 when a decision to issue a separate patta was arrived at.

7. The unregistered lease deed was executed in favour of plaintiffs on 6-5-1947. At this time there was no endorsement in the Chita even. Defendant No. 2, the lessor was not even an ostensible owner. The deed of mortgage was executed on 6-9-1948, a little more than a year after the execution of the lease deed. Plaintiffs have not claimed that any enquiry into the title of the defendant was made before the deed of mortgage was executed.

It is after the mortgage that the mutations were attested in favour of defendant No. 2 on 9-9-1948. The sale came on 9-1-1949. There is no evidence showing that before this sale there was any litigation or dispute about the mutations in favour of defendant No. 2. The complaint and the proceeding under S. 145, Criminal P.C. both came after the sale and it has not been shown that the contest about mutation between defendant No. 1 and defendant No. 2 preceded the sale.

Defendant No. 2 deposed that it came after the sale. At the time of sale plaintiffs had the Chita endorsements and also the mutations in favour of defendant No. 2 followed by a separate patta. Considering that the plaintiffs alleged that they were the lessees and the mortgagees, they could not be unaware of these facts. In fact plaintiff Rama Kissen admits that he went to the Mandal before the sale deed was executed and he was told that defendant No. 1 had a patta and the land in dispute stood in his name.

He also had a certified copy of the Jamabandi. He further deposed that he consulted the pleader before purchasing the land. This pleader was not examined. He admitted that he had not enquired from defendant No. 2 about title deeds. He felt satisfied with the fact that defendant No. 2 had the patta for the land and did not feel called upon to pursue the matter any further.

It is on these facts that his learned counsel claims the protection of S. 41, Transfer of Property Act, conceding that in the absence of a registered deed of sale there could be no valid title in defendant No. 2 so far as this land was concerned, notwithstanding that he had the endorsements, the mutation and the patta.

8. Section 41 of the Transfer of Property Act provides that

"where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."

9. There was a patta in the name of defendant No. 2, the vendor from whom plaintiffs derived title. Mutations were also attested in his favour. They would be ostensible owners according to the revenue records. They were recorded and treated as owners. But the question is whether they were ostensible owners with the consent, express or implied, of the person interested in immoveable property. Defendant No. 1 was still interested in this property.

Title had not been validly conveyed. It was still with him and the question is whether he consented expressly or impliedly to their being recorded as owners. The endorsements made in the Chita acknowledge a completed sale. The factum of the sale is admitted without reservation. But so far as the mutations are concerned and the patta which would make defendant No. 2 the ostensible owner, there is no evidence of consent, express or implied, from defendant No. 1.

The unqualified admission of sale was presumably regarded as a basis for the mutation and the patta that followed. A notice does issue to the transferor normally before a mutation is attested and also when a separate patta is applied for. The patta was issued on an oral request and it has not been shown that defendant No. 1 was a party to the attestation of mutation.

It does not appear why notices were not issued at these stages. If no notices were necessary and were not issued the fact that defendant No. 1 was not aware of the mutation and patta when they came into existence, would remain. Notwithstanding these omissions the mutations and the patta came into existence and defendant No. 2 became the ostensible owner for all practical purposes.But on these facts it is difficult to say that he was an ostensible owner with the consent, express or implied, of defendant No. 1.

Even assuming that the Chita endorsements constituted ample evidence of consent, the question then is whether plaintiffs can be said to have taken reasonable care to ascertain whether the transferor had power to make the transfer and had acted in good faith. All that Rama Kissen, one of the plaintiffs has claimed is that he approached the Mandal, found out that there was a patta and did not bother about how defendant No. 2 got this patta.

He does not admit that he knew that as a result of the Chita endorsements, this patta was obtained by defendant No. 1. If he knew as the result of his enquiry that the patta was issued on the basis of Chita endorsements and there was no registered document of sale, he would know that even though defendant No. 2 was an ostensible owner, he had no power to sell the property.

If he did not make an enquiry and felt satisfied about the title in view of the existence of the patta, in that case it could not be said that reasonable care was taken to ascertain that defendant No. 2 had the power to make the transfer. The Transfer of Property Act applies in Assam. The sale in favour of defendant No. 2 according to plaintiff's version was for Rs. 500/-.

No valid sale could have been made without a registered sale deed. Any enquiry into the title of defendant No. 2 would have brought out these facts to the notice of the plaintiffs. But no search was made for any title deed; nor was defendant No. 2 asked to state whether he had any document of title.

Defendant No. 1 had purchased the property by a registered deed in 1939.

An enquiry from the Registration Office would have shown that defendant No. 1 had title and this title was not lost. The mere fact of patta did not lead to the conclusion that the ostensible owner had power to make the transfer. It is inconceivable that plaintiffs were unaware of the nature of the origin of title claimed by defendant No. 2. There was a lease.

It came into existence before even the Chita endorsements. The plaintiffs became interested in the property before defendant No. 1 made the endorsements. There was a mortgage and after that, comes the sale. Defendant No. 2 had merely the mutations and the patta. They came into existence after plaintiffs obtained the lease.

In view of these facts it should have been clear to plaintiffs that defendant No. 2 had no power to sell the land. It is not enough for the plaintiffs to show defendant No. 2 was an ostensible owner with the consent, express or implied, of the person really interested in the property.

The requirements of the proviso have to be satisfied and plaintiffs had to prove that reasonable care had been taken to ascertain that the ostensible owner had the power to make the transfer and that they had acted in good faith.

The facts as stated by the plaintiffs even if taken as correct, do not show that any real inquiry into the fact whether the ostensible owner had the power to make the transfer was made, nor does it appear that plaintiffs acted in good faith.

10. Mr. Lahiri has pointed out that not only was defendant No. 2 an ostensible owner by reason of his patta, he also got possession of the property. In regard to possession the finding arrived at by the trial Judge is that defendant No. 2 never got possession of the property. This finding has not been differed from in appeal. In fact the learned Judge gave no definite finding on this point.

11. I have been taken through the evidence bearing on the question of possession and consideration also. The Mandal who has appeared as plaintiffs' witness has deposed that defendant No. 2 never possessed the suit land. He himself did not witness any delivery of possession and that defendant No. 1 alone remained in possession of all the three dags in suit all through.

He also did not see any house on the land sold to defendant No. 2 at any time. The statement of defendant No. 2 is not very helpful to the plaintiff on this point He is not a disinterested witness. He deposed that nobody was present when defendant No. 1 delivered possession to him in 1946. His statements bearing on the payment of consideration made in the criminal court were resiled from in the civil court.

In the criminal court he had stated that Lakhi and Narayan were present when possession was delivered. We have also the statement of one Memere Gogoi, who deposed that he built a house on the land in 1947 and plaintiffs' labourers lived in it. The house was blown over by the wind. He is an employee of the plaintiffs. On this evidence no court could come to a finding that defendant No. 2 had possession or he delivered possession to the plaintiffs.

Plaintiffs therefore were entering into these transactions of lease, mortgage and sale without obtaining possession and it is extremely improbable that they were not aware of the true situation. Their good faith therefore is questionable. The requirements of the proviso in this case are therefore absent and plaintiffs have not made out any case for protection under Section 41, Transfer of Property Act.

12. Mr. Lahiri has relied on - 'Mahomed Din v. Mt. Sardar Bibi', 1927 Lab 666 (AIR V 14) (A). In this case the learned Judges held that

"where the revenue entries show a person as the sole proprietor of certain land and there are no other circumstances leading the purchasers of such land from the proprietor to go behind the revenue records and make any further enquiry the vendees are fully protected by the principle underlying S. 41." The proposition laid down is correct in its application to the Punjab. The Transfer of Property Act was not applicable in that province and an oral sale which was evidenced by a mutation could pass good title.

Where therefore there was a mutation showing a person to be an owner of the property and there were no other circumstances putting an intending purchaser on any further enquiry, a mutation may be enough for giving protection under S.41, Transfer of Property Act. But the situation in Assam is different.

Here the Transfer of Property Act applies, oral sales when the property is worth more than Rs. 100 cannot be made and therefore the existence of a mere mutation or a patta on it would not be sufficient in all cases to grant protection under section 41, Transfer of Property Act in this case. In - 'Khawaja Muhammad Khan v. Muhammad Ibrahim', 26 All 490 (B) certain mortgagees took a mortgage from a person who was in possession of the property mortgaged, who was recorded as owner, and held the title deeds of the property.

It was held that there was nothing in the transaction to put the mortgagees on inquiry as to the real title to the property, but the principle of S. 41 of the Transfer of Property Act applied and a suit to restrain the mortgagees from selling the property in execution of a decree on their mortgage was rightly dismissed.

The circumstances in this case are very different. The case is clearly distinguishable on facts. My conclusion in the circumstances is that the facts admitted or proved do not satisfy the requirement of the proviso and protection cannot be given to the plaintiffs under Section 41, Transfer of Property Act.

13. Mr. Lahiri has next argued that if the Chita mutations were not followed by execution of a document, the sale remained inchoate. The title did not pass. But the agreement of sale remained and this agreement of sale would be specifically enforceable. He relied on S. 49 of the Registration Act in support of his contention. Section 49 had a proviso added to it in 1929.

According to this proviso

"an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act."

Mr. Lahiri relied on this part of the proviso. It may be pointed out that in this case there was no written contract of sale. There was merely an endorsement in the Chita, but if there had been a contract of sale contained in an unregistered sale deed, the suit for specific performance could not be based on that document.

All that the proviso to S. 49 permits is that in a suit for specific performance an unregistered document affecting immoveable property may be given in evidence. The purpose is that the document which has not conveyed or passed title may be used as evidence of the terms.

Where a document remains unregistered and title does not pass, the arrangement between the parties which preceded the ineffective document still remains and may be enforced within the period of limitation provided for it. So far as the enforcement of that arrangement is concerned, sanction for it must be sought in the provisions of the Specific Relief Act.

Its specific enforcement would be regulated by the provisions contained in it. A suit for specific performance of an agreement of sale would lie when the document of sale has remained unregistered. It may also lie where no document of sale has been executed.

But a suit for specific performance cannot be founded on an unregistered sale deed. Where a suit, for specific performance of an agreement of sale is instituted the unregistered document can be used merely as evidence of the contract.

It may however be argued in the circumstances of this case that the Chita endorsements could be used as evidence of the transaction of sale and that a suit for specific performance was competent. Chita endorsements are not documents which required compulsory registration under the Registration Act. They are not documents which could be registered. They could be taken as evidence of the terms of the contract between the parties and as the arrangement of sale between the parties has not been completed as required by law, a suit for specific performance would be competent.

The agreement to be enforced was the oral arrangement between the parties that preceded the Chita entry and was embodied in it. The issue that was framed on the point was whether plaintiffs were parties to the contract and could ask for specific performance.

The language of the issue is limited to that point. Mr. Lahiri has argued that it was not necessary that plaintiffs should have been privies to the agreement of sale. They could sue for specific performance as representatives of defendant No. 2.

The learned counsel for the respondent has not questioned the correctness of this position. Plaintiffs therefore would be entitled to sue as representatives of defendant No. 2. A claim to specific performance of the agreement of sale could therefore be a possible ground of attack and relief on this basis had been claimed.

What has happened in this case however is that plaintiffs abandoned issue No. 5 as stated above. Now issue No. 5 though limited in terms appears to have embraced the entire question of relief on the basis of alleged right to obtain specific performance and after the abandonment of this ground of attack the learned Munsiff gave no finding on it.

Plaintiffs in their appeal also did not press for relief on this ground of attack. At the appellate stage also therefore this abandonment was adhered to. In second appeal this question has been raised again and the question is whether in view of this abandonment plaintiffs can be allowed to raise the point at this stage.

Where an issue or a plea or a ground of attack

is abandoned in express terms in the trial court, it may not be allowed to be raised again in second appeal.The learned counsel for plaintiff-appellants however has argued that relief can be given to the plaintiffs on facts found and abandonment in this case should not bind them as the issue was not in clear terms. Assuming that plaintiffs may ask for an adjudication on this ground of attack notwithstanding the express abandonment recorded in the proceeding, it does not appear possible to grant relief to plaintiffs on facts found. The case for the plaintiffs was that full consideration for the sale had been paid by defendant No. 2 to defendant No. 1. This was denied and the finding on the question of consideration also has gone against the plaintiffs. On this point we have only the statement of defendant No. 2 and he has made very conflicting and discrepant statements in two courts. The courts below were fully justified in not relying on these statements. Plaintiffs' version of the affair that defendant No. 1 had received full consideration stands practically disproved. Defendant's version is that there was an agreement of sale. He had agreed to sell the land. But the sale price was to be estimated at the time of the execution of the sale deed when defendant No. 2 migrated to his village and the sale consideration was to be the market price of the land. No evidence has been given in this case as to what the market price of the land is. The market price too had to be ascertained with reference to the date when the document was to be executed and this was to depend on the migration of defendant No. 2. This migration has not been proved and in the absence of evidence of market price of the land on the date when the sale was to be completed it is not possible to grant a decree for specific performance to the plaintiffs even on the admissions of the defendant No. 1. It has to be on payment of the price payable according to his admission. No evidence was given on this point and it was presumably for the reason that plaintiffs did not consider it worth their while to have the land on market price. Not having given any evidence on this point, they decided to abandon this ground of attack at the argument stage in the trial court and did not press for relief on its basis even in appeal. In the circumstances relief even on this basis cannot be allowed. The appeal is dismissed. Appeal dismissed.